ISPs speak out against legal change dubbed ‘Irish SOPA’

3 Feb 2012

The furious debate surrounding the statutory instrument to amend the Copyright Act 2000 – dubbed the ‘Irish SOPA’ – until now has seen one group maintain a dignified silence. But this evening the ISPs came out strongly against the instrument “for very practical and simple business reasons.”

In a statement the Internet Service Providers Association of Ireland (ISPAI) said: “The background put very simplistically is that the music industry failed to secure an injunction in the Irish courts in 2010 against UPC, one of the larger ISPs operating here. In his judgment Mr. Justice Charleton interpreted that Irish law did not give him the means to grant the injunction which the plaintiffs sought because the European Directive had not been fully transposed and referred this back to the government to introduce clarifying legislation.

“It is a matter of opinion as to whether this is really needed and certainly in the decade since the Directive, the European Commission, who is responsible to ensure compliance with Directives hadn’t picked up on it. However, Minister Sean Sherlock is now introducing a quick fix by using an S.I. (statutory instrument) rather than primary legislation.

“This is made more urgent because the music industry is now suing the State for lost revenue due to this perceived omission – expecting the tax-payer to cough up again – and we understand the government must respond during next week. The problem is Minister Sherlock’s quick fix is far too broad, offers no clarification, simply cites the EU Directive and effectively throws interpretation back to the courts,” the ISPs said.

The ISPAI said the reason this legal technicality is so important is because it adds more pressure in what are already difficult trading conditions.

Dark Shadow

“Ireland has secured many large international online businesses to locate here. There are also many successful indigenous online companies servicing international markets. Together they account for a sizeable chunk of our export revenues.

“These companies utilise the internet infrastructure of our members as do the internet using public. The ISPs and many of these online service companies have business built on handling data or content belonging to other people. The whole sector is very buoyant, provides many thousands of jobs in Ireland and is bucking the recessionary trends.

“But this S.I. now hangs like a dark shadow over the industry because, once signed, it copper-fastens that the courts should decide on a case by case basis the remedy for claims of copyright infringement – done by third parties – and whether the remedy should be to force the operators by injunction to prevent infringement (by others) occurring on their services.”

Grinding the internet to a halt

ISPAI manager Paul Durrant didn’t mince his words when he said that the statutory instrument means establishing technical blocking measures against websites, parts of websites and internet services that aren’t even in this jurisdiction.

“Though it is easy to say, it can only be achieved by complex technical interference with the fundamental systems that keep the internet up and running.”

The ISPAI says that blocking sites and content will put ISPs into an impossible position. “The vast quantity of music tracks and films against which traffic would have to be checked would probably grind the Internet to a halt, affecting all the online services on which we have come to rely.”

The ISPs say that they are against their networks being used to illicitly obtain or share copyrighted content like music. They maintain the best way to stop copyright theft is to go after the services that facilitate piracy such as the recent closure of Megaupload.

Killing innovation?

The ISPs group also warns that the statutory instrument will have enormous implications for the internet industry because it opens companies operating in this jurisdiction to test cases that may set a precedent for the entire EU.

They also point out that most ISPs in Ireland don’t have the deep pockets to defend an injunction action taken Ireland.

“The only option is to cave in to the injunction and take the cost of implementing the technical remedy which would have to be passed on to customers. This can also backfire as customers suffering from inevitable collateral damage will sue you for your trouble and probably leave you due to increased monthly charges.
“Either way it’s a recipe to kill off innovative online businesses in Ireland.

“What makes this so sad, is the government is trying to tell us that at the same time, that they see Ireland as a hub for cloud computing services, which by definition are services hosting other people’s content and more than other online businesses exposed to the vagaries of this S.I.,” the ISPAI stated.

John Kennedy is a journalist who served as editor of Silicon Republic for 17 years